READING ON THE STATUTE OF USES. 323 



giveth it : so that a consideration, or no consideration, is an 

 issue at the common law; but notice, or no notice, is an 

 issue in the chancery. And so much for the preserving of 

 uses. 



3. For the transferring of uses there is no case in law The transfering 

 whereby an action may be transferred, but the subpoena we of uses - 

 see in case of use was always assignable ; nay, farther, you 

 find twice 27 H. VIII. fol. 20, pla. 9; and again, fol. 30, 

 and pla. 21, that a right of use may be transferred ; for in 

 the former case Montague maketh an objection, and saith, 

 that a right of use cannot be given by fine, but to him that 

 hath the possession ; Fitzherbert answereth, Yes, well 

 enough ; query the reason, saith the book. 



And in the latter case, where cestuy que use was infeoflfed 

 by the disseisor of the feoffee, and made a feoffment over, 

 Englefield doubted whether the second feoffee should have 

 the use. Fitzherbert said, &quot; I marvel you will make a 

 doubt of it, for there is no doubt but the use passeth by 

 the feoffment to the stranger, and therefore this question 

 needeth not to have been made.&quot; So the great difficulty 

 in 10 Reginse, Delamer s case, where the case was in 

 effect, there being tenant in tail of a use, the remainder 

 in fee, tenant in tail made a feoffment in fee, by the 

 statute of 1 R. III. and that feoffee infeoffed him in the 

 remainder of the use, who made a feoffment over ; and 

 there question being made, whether the second feoffee 

 should have the use in remainder, it is well said, that 

 the second feoffee must needs have the best right in 

 conscience ; because the first feoffee claimeth nothing but 

 in trust, and the cestuy que use cannot claim it against his 

 sale ; but the reason is apparent, as is touched before, that 

 a use in esse was but a thing in action, or in suit to be 

 brought in court of conscience ; and whether the subpoena 

 was to be brought against the feoffee in possession to exe 

 cute the estate, or against the feoffee out of possession to 

 recontinue the estate, always the subpoena might be trans 

 ferred; for still the action at the common law was not 

 stirred, but remained in the feoffee; and so no mischief of 

 maintainance or transferring rights. 



And if any use being but in right may be assigned, and Gilb. v. 

 passed over to a stranger, a multo fortiori, it may be limited 

 to a stranger upon the privity of the first conveyance, as 

 shall be handled in another place ; and whereas Glanvile, 

 justice, said, that he could never find, neither in book, nor 

 evidences of any antiquity, a contingent use limited over 



